Recoupment of Overpayments of Indemnity Benefits in Workers' Compensation


In workers’ compensation cases, an employee/injured worker may be entitled to temporary indemnity benefits from the workers’ compensation carrier following an industrial accident. If such benefits are paid, overpayments of such benefits may occasionally occur due to calculation errors or subsequent adjustments in the injured worker’s average weekly wage and corresponding compensation rate. If this occurs, how is this overpayment recouped? Can the carrier just keep all of any future indemnity benefits until the overpayment is recouped?

Pursuant to Florida Statute Section 440.15(12), “if an employee has received a sum as an indemnity benefit under any classification or category of benefit under this chapter to which he or she is not entitled, the employee is liable to repay that sum to the employer or the carrier or to have that sum deducted from future benefits, regardless of the classification of benefits, payable to the employee under this chapter; however, a partial payment of the total repayment may not exceed 20 percent of the amount of the biweekly payment.”

For example, under this statutory section, if it is determined by an adjuster that an overpayment of $1,000.00 in indemnity benefits has occurred due to an incorrect calculation of the average weekly wage, what should the adjuster do next? If the injured worker still receives indemnity benefits of any variety, which includes impairment benefits, the adjuster/carrier would be entitled to recoup this overpayment from each biweekly check at a maximum of 20% per check until the $1,000.00 has been recouped in full. Let’s say the injured worker is receiving $500.00 in indemnity benefits every two weeks, the carrier would be entitled to reduce this total by 20%, or $100.00 every check until the $1,000.00 is recouped over a period of 10 checks or 20 weeks.

Of course, the problem typically encountered is what if an overpayment has occurred and no indemnity benefits, of any variety, are being paid to the injured worker? In this situation, the carrier would either have to wait and recoup the overpayment out of any future indemnity benefits which may come due and owing to the injured worker or the more likely scenario would be to use the overpayment as a bargaining tool in settlement negotiations.

Bottom line is that overpayments happen and you want to make sure that it is properly recouped pursuant to the workers’ compensation statute.

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